Conduct of election; immediate seating if credentials in order.
Credentials presented: Mar. 26, 1908
Senate vote: Mar. 26, 1908
John W. Smith, a native of Maryland's eastern shore and a businessman of comfortable means, rose through the ranks of the state's Democratic machine politics to capture a succession of offices. In a career that spanned more than forty years, Smith served as a member of the state assembly, president of the state senate, and governor of Maryland. In 1908 Smith—who had become the unofficial Democratic leader of the state after the death in 1906 of his patron Senator Arthur P. Gorman (Democrat-MD)—was elected to the United States Senate for the term beginning March 4, 1909. When the incumbent senator, William P. Whyte, died in March 1908, the Maryland assembly selected Smith to fill the remaining year of that term as well.
Statement of the Case
On March 26, 1908, John Smith's credentials were presented to the United States Senate, stating that the legislature had elected him the previous day. Julius C. Burrows (Republican-MI), chairman of the Committee on Privileges and Elections, raised an objection on the grounds that the Maryland election violated provisions of the 1866 federal election law regulating elections to fill vacancies. The statute in question, he declared, stipulated that a state legislature could not fill a vacancy until the second Tuesday after notice that one existed. Since William Whyte had died Tuesday, March 17, 1908, his replacement could not be selected until March 31, but John Smith's credentials showed the election was completed six days earlier, on March 25. Burrows asserted that every election to fill a vacancy since passage of the 1866 law had conformed to the requirement to wait until the second Tuesday and that Smith therefore should not be seated.
Smith's Maryland Democratic colleague Isador Rayner, however, pointed out that no one was contesting the election and that the Maryland legislature was required by the state's constitution to adjourn before the next Tuesday. Thus, delaying the election would leave the state without its full representation in the Senate. Rayner interpreted the statute simply to mean that a legislature must not elect a senator until the second Tuesday after it was organized. After that day, it could fill a vacancy whenever one occurred. At any rate, he concluded, the Senate precedent was to seat a senator who arrived with proper credentials and to conduct an inquiry afterward.
Response of the Senate
A resolution to delay the seating of John Smith failed by a vote of 28 to 34. Smith then came forward and took his oath of office.
The Senate thus agreed with Rayner that it would seat a senator-elect with regular credentials and no challengers. The early date of the election did not alter the essential validity of the procedure, and the Senate took no further action on the matter.
Smith held his Senate seat until 1921. In his final campaign, Smith's advancing age, his advocacy of prohibition, and factionalism among Democrats helped sweep Republican Ovington E. Weller to victory. Smith died in 1925.
Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.
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